Licensing Illegal Aliens?,Editorial Board

The contretemps over Governor Spitzer's plan to allow illegal aliens to get driver's licenses in New York State - by no longer requiring applicants for licenses to present a Social Security number or a letter from the Social Security Administration that the applicant, though ineligible to work, was here legally - continues to roil Albany and seems to have displaced Troopergate as the discussion topic of choice.

We were initially drawn to the issue as part of our general dismay over the growing lack of civility in the public discourse. As we noted in an Oct. 12 editorial titled "Political Nasty Season," public officials today rarely debate their proposals principally on the merits, but rather cast aspersions on the impropriety of the motives of the opposition. As we got into the issue, we learned more, much more.

In our editorial we cited Gov. Spitzer's reference to opponents of his plan as "using the rhetoric of desperation, taking advantage of the memory of 9/11 to push their anti-immigrant agenda." We also noted the governor's over-the-top reaction to Mayor Bloomberg (who, incidentally, we also criticized in this context for something over the top he'd said) who pronounced himself "really skeptical [about] issuing driver's licenses willy-nilly because it then leads to lots of other problems." Gov. Spitzer came back with: "He is wrong at every level - dead wrong, factually wrong, legally wrong, morally wrong, ethically wrong."

Not only would they be intemperate under any circumstances, but consider the following context in which Gov. Spitzer's remarks were made.

Section 502 of New York's Vehicle and Traffic Law provides in pertinent part (emphasis added throughout):

1. Application for license shall be made to the commissioner. The fee prescribed by law may be submitted with such application. The application shall furnish such proof of identity, age, and fitness as may be required by the commissioner. The commissioner may also provide that the application procedure shall include the taking of a photo image or images of the applicant in accordance with rule and regulations prescribed by the commissioner. In addition, the commissioner shall require that the applicant provide his or her social security number.

Several things are readily apparent. For one, the legislature was quite mindful of the difference in meaning of may and shall, aswitness the selective usage. Second, legislators were careful to describe when something they said shall be done would properly be subject to "rules and regulations prescribed by the commissioner." Plainly, the issue of a social security number was not to be subject to any interpretation by the commissioner.

In any event, in 2002, the commissioner of motor vehicles promulgated official regulations pursuant to the law governing such rule-making as follows:

(a) An applicant for a licenseor an applicant renewing such a licensemust submit his or her social security number or provide proof that he/she is not eligible for a social security number.

(b) The failure of a person to submit his or her social security number or to provide proof that he/she is not eligible for a social security numberwill disqualify such person from renewing such licenseor obtaining such a license.

The authority to issue these regulations seems questionable given the absolute nature of the word "shall" in the statute and that a statute cannot be trumped by an administrative regulation. But the regulations were not challenged and at least the concept was still within the parameters of the spirit of the law since it still required an official statement that the applicant's presence in this country was legal. This was because the Social Security Administration letter was available only to those individuals with legal immigration status, as was the case with social security numbers.

And this is the rub. The Spitzer plan rescinds even the questionable alternative of requiring the Social Security Administration letter of ineligibility. In fact, the governor's office justified the change because the existing policy "effectively made it impossible for illegal immigrants to obtain driver licenses by stipulating that the only way to define 'ineligibility' would be through obtaining a formal letter of ineligibility from the Social Security Administration, a letter that is only obtainable by individuals who have legal immigration status."

There's more. The law also requires DMV officials to deny a license to those applicants who are not in compliance with the Selective Service Law and to notify the authorities in this regard. Nothing of this nature is permitted under the Spitzer plan regarding illegal aliens who are not in compliance with federal law.

Supporters of the Spitzer plan argue that just as the initial rulemaking interpreted the "shall" language as not being absolute - permitting, in fact, a letter of ineligibility - so too there can now be a further interpretation eliminating the requirement of even the letter of ineligibility. The rationale, we were told, incredible as it seems, is that requiring the disclosure of a social security number is not the same thing as requiring possession of a number itself. In addition, it is claimed, the New York Court of Appeals has ruled that the language "shall" is not absolute.

This is not the place to get into an extensive legal analysis. Simply put, the original rule was formally adopted according to the procedures for adopting administrative rules and regulations, yet the Spitzer change is informal and not in compliance with those procedures. Nor should any further comment be necessary to dispel the notion that requiring disclosure of a social security number is not the same thing as requiring possession of said number. And we would challenge anyone to come forward with a single Court of Appeals opinion that directly construes the statutory language the way the Spitzer plan would have it read.

Our point is not that the governor's vision lacks merit - there is enough of that on both sides of the argument. But not only is there legitimate room for debate, there are rules - and it's not a good thing for a democracy if government officials can, with impunity, bend the clear import of the law to their will and try to cow those who say the emperor has no clothes.

Read Comments (1)

The 2002 regulations were challenged
Date 12:11, 11-1, 07

Your editorial is wrong. The 2002 regulations were legally challenged. Look it up: Cubas v. Martinez, 8 N.Y.3d 611 (2007).
New York's highest court found that the Governor can make these changes without legislative approval.